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THE  LIBRARY  OF  THE 

UNIVERSITY  OF 

NORTH  CAROLINA 


THE  COLLECTION  OF 

NORTH  CAROLINIANA 

ENDOWED  BY 

JOHN  SPRUNT  HILL 

CLASS  OF  1889 


Cp970.03 
U58o22 


UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


00032204891 

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Library  building. 


20th  Congress,  Rep.    No.    6S3.  Ho.  of  Rfps 

1st  Session. 


CHEROKEE  INDIANS. 

[To  accompany  bill  H.  R.  No.  456.] 


JuxNE  2,  1S46. 


Mr.  Jacob  Thompson,  from  the  Committee  on  Indian  Affairs,  made  the 

following 

REPORT : 

The  Committee  on  Indian  Affairs,  to  whom  were  referred  the  message  of 
the  President  of  the  United  States,  relative  to  Cherokee  difficulties,  with 
the  accompanying  papers,  and  also  the  memorial  of  John  Ross  and 
others,  as  the  representatives  of  the  Cherokee  ?ialion,  have  had  the  same 
under  consideration,  and  beg  leave  to  sub/nit  the  following  report : 

The  Cherokees  residing  west  of  the  State  of  Arkansas  are  divided  into 
three  distinct  parties,  or  factions,  well  known  and  distinguished  by  the 
terms  of  "old  settlers,"  "  treaty  party,"  and  .'^anti-treaty,  or  Ross  party." 
The  "  old  settlers"  and  "treaty  party,"  togibttier,  constitute  about  one- 
third  of  the  Cherokee  nation  ;  and  of  course  all  the  political  power  of  the 
government  is  held  and  exercised  by  the  anti-treaty  or  Ross  party.  The 
manner  in  which  this  power  was  obtained,  and  is  now  exercised,  is  the 
fruitful  source  of  the  discontents  and  complaints  which  have  been  brought 
to  the  consideration  of  Congress. 

The  old  settlers,  who  were  the  pioneers  of  the  Cherokee  people,  who  had 
long  claimed  to  be  a  distinct  and  independent  community,  and  who  aver 
that  they  believed  the  whole  country  known  as  the  Cherokee  nation,  with 
the  exception  of  the  800,000  acres  which  have  been  acquired  since  the 
year  1835,  to  be  rightfully  vested  exclusively  in  them,  are  restive,  and 
submit  with  great  impatience  to  rulers  chosen  by  strangers  and  intruders, 
and  to  laws  enacted  without  their  consent.  The  treaty  party  represent 
themselves  as  feeling  no  security  of  person  or  property,  under  the  admin- 
istration of  the  dominant  party.  Many  of  their  leaders,  endeared  to  them 
in  a  thousand  ways,  have  been  cruelly  murdered,  and  the  perpetrators  of 
the  murders  have  escaped  unpunished.  They  are,  for  the  most  part,  de- 
nounced as  "  traitors,"  and  the  sentence  of  outlawry  has  been  passed 
upon  them.  Day  after  day  witnesses  the  shedding  of  blood,  and  the  cries 
of  lamentation  and  distress  are  heard  throughout  the  land.  Some  of  this 
party  are  in  a  state  of  banishment,  and  a  large  portion  of  them  having  fled 
their  country,  are  now  actually  supported  by  the  charity  of  the  United 
States. 

A  conviction  of  their  own  weakness,  and  of  the  necessity  of  union, 
connected  with  the  oppression  and  injustice  which  they  suppose  them- 
selves alike  to  have  endured  at  the  hands  of  the  dominant  party,  has  pro- 
Ritchie  &  Heiss,  printers- 


?>  (oQ  6  X 


2  Rep.  No.  68S. 

duced  a  strong  community  of  feeling— a  deep  sympathy  for  each  other? 
collectively  and  individually,  between  the  "old  settlers"  and  the  "  treaty 
party."  To  the  individual  Indians  who  compose  these  two  parties,  the 
government  of  the  United  States  is  largely  indebted  ;  and  to  abandon  them 
now  to  be  despoiled  of  every  right  which  they  have  heretofore  enjoyed, 
voluntarily  to  leave  them  the  subjects  of  a  reign  of  terror,  liable  at  any 
moment  to  be  stripped  of  property  or  life,  without  recourse,  would  be  an 
act  of  the  most  flagrant  injustice  and  the  grossest  ingratitude. 

It  has  long  been  a  cherished  policy  on  the  part  of  the  United  States  to 
remove  the  Cherokees  from  the  States  east  of  the  Mississippi  river  to  a 
country  west,  beyond  the  jurisdiction  of  any  State  or  Territory.  The 
"old  settlers,"  at  an  early  day,  cheerfully  came  into  the  views  of  the  gov- 
ernment, and  contributed  their  influence  and  example  in  effectuating  its 
purposes.  These  kind  services  should  be  remembered,  and  the  claims  of 
these  persons  upon  our  protection  and  guardian  care  must  be  favorably 
considered. 

Before  the  treaty  of  1835,  the  Cherokee  council  had  issued  a  decree 
that  any  individual  of  that  tribe  who  should  sign  a  treaty  for  the  cession 
of  the  Cherokee  country  should  be  considered  as  a  traitor,  and  as  such 
should  be  regarded  as  an  outlaw.  Notwithstanding  this  sentence  and 
fearful  penalty,  after  the  Cherokee  nation  was  involved  in  the  most  per- 
plexing difficulties  with  the  State  of  Georgia,  which,  if  persisted  in,  were 
calculated  to  disturb  the  peace  and  good  feeling  of  the  people  of  the  whole 
Union;  and  after  it  became  evident  that  to  remain  longer  in  their  old 
country  was  destructive  tojheir  prosperity,  and  even  of  their  national  ex- 
istence, and  that  the  onlylpeans  of  saving  their  own  people,  and  of  re- 
moving from  the  States  and  the  general  government  the  perplexing  ques- 
tions of  conflicting  jurisdictions  which  had  sprung  out  of  their  remain- 
ing on  this  side  of  the  Mississippi  river,  was  to  treat  for  the  cession  of  all 
their  country  within  the  States  ;  the  treaty  party,  with  a  firmness  of  nerve 
and  a  purity  of  purpose  which  reflected  upon  them  high  honor,  came 
forward,  at  the  most  earnest  solicitation  of  the  United  States,  entered  into 
a  treaty  in  the  year  1835,  in  the  face  of  the  most  violent  opposition;  braved 
the  most  unmeasured  denunciations ;  and,  in  this  manner,  enabled  our 
government  to  avoid  a  conflict  which  threatened  to  shake  our  institutions 
to  their  very  fogpdation.  The  committee  feel  unwilling  that  these  indi- 
viduals should  suffer  at  the  hands  of  a  vindictive  majority,  for  acts  per- 
formed at  our  instance,  as  long  as  we  possess  the  power  to  threw  our 
shield  of  protection  over  them. 

These  "  old  settlers"  and  "  treaty  party"  appeal  to  us  to  save  them 
from  the  evil  effects  of  domestic  strife — to  give  them  a  country  where 
hey  may  live  under  their  own  laws,  customs,  and  head-men,  unmolested 
by  a  domestic  foe  who  seeks  their  destruction — to  deliver  them  from  op- 
pression and  misrule,  which,  if  not  arrested,  must  end  in  their  annihilation. 
The  facts  which  they  set  forth,  and  on  which  they  rely,  to  sustain  them 
in  their  prayer,  are  satisfactorily  proven  by  the  mass  of  testimony  sub- 
mitted to  the  committee.  The  reasonableness  and  justness  of  this  appeal, 
therefore,  readily  commend  its  adoption;  and  a  bill  is  herewith  reported  for 
the  appointment  of  three  commissioners,  to  make  an  equitable  division  of 
the  country  between  them  and  the  Ross  party. 

As  to  the  policy  and  good  effects  of  this  dismemberment  of  the  nation, 
there  can  be  but  one  opinion  :  division  must  be  made ;  this  people  must 


Rep.  No.  683.  „  « /         3 


OfV»- 


be  separated;  the  continuance  of  the  present  social  compact,  unchecked 
and  unrestrained  as  it  exists  at  present,  will  inevitably  end  in  the  final 
destruction  of  the  minority  parties.  On  this  subject  the  committee  are 
unanimous. 

The  only  question  that  can  be  raised,  that  deserves  serious  considera- 
tion, is  the  one  relied  upon  in  the  memorial  of  John  Ross  and  others,  who 
claim  that  the  Cherokee  nation  is  one  community — who  have  guarantied 
to  them,  by  solemn  treaty,  the  right  to  "establish  and  enjoy  a  government 
of  their  choice,  and  to  perpetuate  such  a  state  of  society  as  may  be  con- 
sonant with  their  views,  habits,  and  conditions,  and  as  may  tend  to  their 
individual  comfort,  and  their  advancement  in  civilization ;"  and  from  this 
treaty  stipulation  they  deny  to  Congress  all  power  whatever  to  divide  the 
country  between  any  bands  or  parts  of  the  nation.  They  refer  to  that 
clause  of  the  treaty  wherein  "  the  United  States  agree  to  protect  the  Cher- 
okee nation  from  domestic  strife  and  foreign  enemies,  and  against  intes- 
tine wars  between  the  several  tribes;"  and  consider  it  similar  to  that  pro- 
vision of  the  constitution  which  says,  "  the  United  States  shall  guaranty 
to  every  State  in  this  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion,  and,  on  application  of  the  legisla- 
ture or  of  the  executive,  (when  the  legislature  cannot  be  convened,) 
against  domestic  violence."  They  then  proceed  with  the  argument: 
"  It  cannot  be  pretended  that  such  interposition  can  be  made  by  the  fed- 
eral government  upon  the  application  of  an  individual  citizen,  or  any 
number  of  the  citizens  of  a  State,  complaining  that  the  laws  of  the  State 
are  oppressive,  or  that  they  are  oppressively  administered  or  executed  : 
such  an  interpretation  would  annihilate  State  sovereignties,  and  would 
inevitably  excite  the  domestic  strife  it  pretended  to  suppress."  The  com- 
mittee have  desired  to  present,  in  all  fairness,  the  position  taken  by  the 
dominant  party  of  the  Cherokee  nation,  because  they  feel  unwilling  to 
violate  the  constitution  or  to  assume  power  to  accomplish  the  most  cher- 
ished object.  But  the  whole  argument  is  based  upon  a  most  palpable 
error.  Indian  nations  are  not  sovereign  States  or  independent  govern- 
ments; on  the  contrary,  they  have  ever  been  considered  as  dependants: 
the  fee  simple  of  the  very  land  they  occupy  is  vested  in  the  United  States, 
and  the  Indian  occupies  the  position  of  the  ward,  and  the  United  States 
as  the  guardian  and  protector. 

It  is  true  that,  time  after  time,  treaties  have  been  made  with  the  dif- 
ferent tribes,  which  have  been  conducted  and  ratified  with  all  the  form 
and  circumstance  pertaining  to  a  similar  arrangement  with  the  most  pow- 
erful nation  on  earth  :  but,  in  all  this,  there  has  been  exhibited  a  strange 
anomaly  in  the  science  of  diplomacy.  The  United  States  never  have 
treated  with  an  Indian  nation  as  an  equal.  Our  commissioners  draw  iip 
the  treaties — our  authorities  construe  them — our  agents  execute  them, 
and  our  sense  of  right  and  our  views  of  good  policy  have  ever  prevailed, 
and  in  no  position  have  we  forgotten  that  they  are  the  weaker,  the  de- 
pendant party ;  that  these  treaties  are  to  be  construed  as  contracts,  and 
that  interpretation  is  to  be  adopted  which  is  most  favorable  to  the  Indian 
interests,  and  most  conducive  to  his  happiness  and  advancement.  And 
in  the  history  of  this  very  tribe  of  Indians,  we  have  a  most  striking  ex- 
ample of  the  interference  of  our  government  for  the  contentment  and  hap- 
piness of  the  Cherokees.  Near  thirty  years  ago,  a  difference  between  the 
various  bands  of  this  tribe  manifested  itself,  growing  out  of  the  preference 


4  Rep.  No.  683. 

of  the  one  party  for  the  chase  and  the  hunter's  life,  and  of  the  other  for 
agriculture  and  the  arts  of  civilization ;  and  this  led  to  a  treaty,  by  virtue 
of  which  the  different  parties  voluntarily  separated,  and  a  distinct  and 
far  distant  country  was  assigned  to  the  then  emigrating  party,  and  to 
such  as  might  be  induced"  to  follow.  It  is  true  that  this  appears  to 
have  been  done  by  the  mutual  consent  of  all  the  Cherokee  people. 
But  no  one  can  doubt  that  the  same  thing  would  have  been  allowed 
and  sanctioned  upon  the  petitions  of  the  one  side  and  the  protest  of 
the  other.  And  in  the  present  case  no  one  could  doubt  that  it  would 
be  clearly  within  the  range  of  our  discretion  to  invite  these  minority  and 
oppressed  parties  to  leave  their  country  altogether,  and  to  locate  on  another 
and  different  tract  of  country.  This  appears  to  the  committee  so  self-ev- 
ident that  all  argument  would  be  superfluous.  Then  let  us  suppose  that 
the  present  Cherokee  country  is  vested  in  all  the  tribe,  and  held  by  them 
as  tenants  in  common  ;  can  any  one  entertain  a  reasonable  doubt  that, 
should  Congress  believe  a  division  of  the  country  between  the  different 
bands  or  factions  is  necessary  to  save  them  from  domestic  strife,  to  secure 
to  them  life  and  the  untrammelled  pursuit  of  happiness,  to  give  them  con- 
tentment, and  advance  them  in  civilization,  they  have  not  the  power?  On 
the  contrary,  would  not  a  refusal  or  a  failure  to  act,  in  view  of  the  conse- 
quences, be  in  the  highest  degree  culpable  ?  and,  should  blood  be  shed, 
and  the  happiness  of  a  people  destroyed  by  this  omission,  with  what  jus- 
tice could  we  claim  to  be  guiltless,  and  to  hold  our  skirts  to  be  clear? 
The  position  we  occupy,  of  guardian  to  this  people,  and  the  obligation 
we  have  taken  upon  ourselves  to  protect  them  from  domestic  strife,  impose 
upon  us  the  duty  of  affording  some  remedy  for  existing  evils  ;  and,  in  the 
estimation  of  the  committee,  none  is  more  plausible  or  more  effective  than 
a  division  of  the  country,  and  a  separation  of  these  embittered  parties, 
leaving  each  to  make  their  own  laws,  adopt  their  own  customs  and  forms 
of  government,  and  choose  their  own  head  men  and  rulers. 

It  has  been  the  uniform  custom  of  the  government  of  the  United  States, 
during  the  whole  course  of  its  history,  to  deprive  no  Indian  tribe  of  the 
land  of  which  they  were  found  possessed,  without  first  obtaining  their 
consent  in  some  satisfactory  form.  Possessed  of  unlimited  power,  the 
United  States  has  exercised  it  with  delicacy,  forbearance,  and  a  due  re- 
gard for  the  feelings,  interests,  and  even  prejudices  and  superstitions,  of 
the  Indians  ;  nor  could  your  committee  now  give  their  assent  to  any  other 
line  of  policy.  They  would  be  unwilling  that  our  government,  should 
expel  the  Cherokee  people  from  one  acre  of  the  land  assigned  them,  in 
order  to  make  way  for  the  settlement  of  our  own  citizens.  But  in  this  di- 
vision the  United  States  is  a  disinterested  party.  A  common  inheritance 
is  to  be  divided  by  a  paternal  guardian  between  the  heirs,  who  are  embit- 
tered and  deadly  hostile  to  each  other,  in  or^ler  to  restore  to  them  peace, 
contentment,  personal  security,  and  prosperity. 

In  the  bill  reported  by  the  committee,  a  change  in  the  intercourse  laws 
is  proposed,  for  the  purpose  of  the  more  effectual  suppression  of  vice  and 
certain  punishment  of  crime.  The  outrages  upon  all  law  and  humanity 
which  have  been  committed  in  the  Cherokee  country,  and  have  passed 
away  in  many  instances  without  investigation,  and  seldom  with  the  pun- 
ishment of  the  offenders,  have  rendered  this  change  necessary  and  proper; 
and  the  more  so,  when  there  are  plausible  grounds  not  wanting  to  suspect 
the  Cherokee  authorities  of  instigating,  or  at  least  conniving  at,  the  com- 


Rep.  No.  683.  5 

mission  of  these  crimes.  But  the  question  is  again  raised,  has  Congress 
the  power  to  make  the  proposed  change  in  the  intercourse  laws,  so  as  to 
confer  upon  the  federal  courts  the  power  of  trying  an  Indian  for  offences 
committed,  against  the  person  and  property  of  an  Indian,  and  to  make  the 
same  applicable  to  the  Cherokee  nation  ?  The  treaty  of  1S35  is  relied 
upon  as  limiting  the  power  of  Congress  over  this  subject ;  and  it  is  true, 
that,  by  the  fifth  article  of  this  treaty,  it  is  agreed  that  the  United  States 
will  secure  to  the  Cherokee  nation  the  right  of  their  national  councils  to 
make  and  carry  into  effect  such  laws  as  they  may  deem  necessary  for  the 
government  and  protection  of  the  persons  and  property  within  their  own 
country,  belonging  to  their  people.  But  a  proviso  immediately  follows, 
that  such  laws  shall  not  be  inconsistent  with  the  constitution  of  the  Uni- 
ted States,  and  such  acts  of  Congress  as  had  been  or  might  be  passed,  reg- 
ulating trade  and  intercourse  with  the  Indians. 

At  the  December  term  of  the  Supreme  Court  of  the  United  States,  for 
the  year  1845,  in  the  case  of  the  United  States  vs.  Rogers,  which  came 
up  from  the  State  of  Arkansas  upon  a  certificate  of  division  between  the 
justices  who  held  the  circuit  court  of  that  State,  this  identical  point  was 
made  ;  and  Chief  Justice  Taney  delivered  the  opinion  of  the  court  in 
these  terms  : 

"  It  is  our  duty  to  expound  and  execute  the  law  as  we  find  it ;  and  we 
think  it  too  firmly  and  clearly  established  to  admit  of  dispute,  that  the  In- 
dian tribes  residing  within  the  territorial  limits  of  the  United  States  are 
subject  to  their  authority  :  and  when  the  country  occupied  by  them  is 
not  within  the  limits  of  one  of  the  States,  Congress  may  by  law  punish 
any  offences  committed  there,  no  matter  whether  the  offender  be  a  white 
man  or  an  Indian." 

This  opinion  of  the  court  covers  the  whole  ground,  and  supersedes  the 
necessity  of  further  argument  on  the  part  of  the  committee. 

Provision  is  also  made  in  the  bill  reported  for  the  emigration  and  sub- 
sistence of  those  Cherokees  who  still  remain  in  the  State  of  North  Caro- 
lina ;  and  an  election  between  the  parties  is  given  to  the  emigrating  Chero- 
kee on  his  arrival  among  his  brethren  in  the  west,  and  he  is  allowed  to 
settle  down  and  affiliate  with  that  band  or  division  which  he  may  prefer. 
This  is  an  act  of  sheer  justice,  not  only  to  the  unfortunate  Indian  who 
lingers  behind  away  from  his  brethren,  but  also  to  the  State  of  North  Car- 
olina, which  has  been  burdened  and  molested  with  this  population.  And 
to  this  section  no  objection  is  anticipated. 

The  committee  omit,  by  design,  the  expression  of  any  opinion  as  to  the 
claims  for  money  which  are  set  up  by  the  different  parties.  This  whole 
matter  is  now  a  subject  of  investigation  in  the  War  Department,  and  no 
satisfactory  conclusion  could  be  attained  without  further  and  more  defi- 
nite information. 


Digitized  by  the  Internet  Archive 

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University  of  North  Carolina  at  Chapel  Hill 


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